TaxTMI 
TaxTMI 
2019 (1) TMI 1921
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....d to as "the deceased") expired on 31/08/2005, leaving behind her 9 nephews/nieces being sons and daughters of her predeceased brothers/sisters and her sisters in law (being the widows of her predeceased brothers) as her only legal heirs. The deceased had left behind, as part of her estate, various immovable properties as well as jewellery and shares etc. One of the most valuable assets left behind by the deceased was a Flat being Flat No. 303, Belmont, Napean Sea Road, Mumbai alongwith Garage (Hereinafter referred to as "the Belmont Flat") 4. Respondent Nos. 1 and 2 herein filed Probate Petition No. 223 of 2006 for propounding the Will dated 30/09/2001 of the deceased. Under the said Will, Respondent Nos. 1 and 2 were appointed as Executors and Trustees of the Estate of the deceased. Similarly, by the said Will, the Belmont Flat has been bequeathed to Respondent Nos. 1 and 2. The Will did not make any provision for remainder estates of the deceased, which therefore, according to the Appellants, devolved as of intestacy. 5. In the proceedings of the Probate Petition, Appellants and Respondent No. 5 lodged Caveats and filed Affidavits in support thereof, for opposing the grant....
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.... only be made by a beneficiary or legatee who accepts the Will. It cannot be made by a person who seeks to dislodge the Will or contests the application for probate or Letters of Administration with Will Annexed. The application for removal posits the acceptance of a Will. (d) Any application for removal of an executor must necessarily be read as one for appointment of a successor in place and stead of that executor. There can be no application for removal of an executor or administrator under Section 301 without the appointment of a Successor to take his place." After making the above observations, the learned Single Judge held the Misc. Petition to be misconceived and not maintainable. Being aggrieved thereby, the present appeal. 8. Ms. Iyer, the learned Senior Counsel appearing on behalf of the Appellants, submits that the learned Single Judge has erred in holding that the said Misc. Petition was miscellaneous proceedings in Probate Petition, whereas, as a matter of fact, the said proceedings were independent proceedings under Section 301 and not the miscellaneous proceedings in Probate Petition. She submits that, though, initially, inadvertently the said Misc. Pe....
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.... who is entitled to some interest in the estate of the deceased, finds that the executor is mis-administering the estate or acting in a dishonest and malafide manner, then the only remedy to such a person is to file proceedings under Section 301. She therefore submits that merely because such a beneficiary has also opposed the grant of probate, cannot be a ground to stop him from filing an application under Section 301. 11. The learned Senior Counsel further submits that the learned Single Judge, subsequently, in Notice of Motion No. 74 of 2015 in Testamentary Suit No. 14 of 2004 in Testamentary Petition No. 80 of 2004 (Vasant Narayan Sardal vs. Ashita Tham & Ors), vide order dated 03/05/2018, has himself held that the Court was not powerless under Section 301 and entitled to invoke the powers under Section 301 suo motu for removal of the executor and appointed Officer of this Court in place of the Plaintiff in Testamentary Suit and allowed to convert the Suit to one for Letters of Administration with Will annexed. The learned Senior Counsel submits that the same course of action could have been followed by the learned Single Judge, in the present matter also. 12. Mr. Andhyar....
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.... grammatical meaning unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to the contrary. It is also equally well settled that when the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning irrespective of the consequences. It will be relevant to refer to the following observations of their Lordships of the Apex Court in the case of Union of India through Director of Income Tax vs. Tata Chemicals Limited (2014) 6 SCC 335. "22. It is cardinal principle of interpretation of statutes that the words of a statute must be understood in their natural, ordinary or popular sense and constructed according to their grammatical meaning unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of a statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning irrespective of the conseq....
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....heir Lordships have discussed the earlier judgments on casus omissus. In the said judgment, their Lordships have observed thus:- "21. The legal position prevalent in this country is not much different from the law as stated in England. This Court has in several decisions held that casus omissus cannot be supplied except in the case of clear necessity and when reason for it is found within the four corners of the statute itself. The doctrine was first discussed by V.D. Tulzapurkar, J. in CIT v. National Taj Traders [(1980) 1 SCC 370: 1980 SCC (Tax) 124]. Interpretative assistance was taken by this Court from Maxwell on Interpretation of Statutes (12th Edn.), pp. 33 and 47. The Court said: (SCC pp. 375-76, para 10) "10. Two principles of construction--one relating to casus omissus and the other in regard to reading the statute as a whole--appear to be well settled. In regard to the former the following statement of law appears in Maxwell on Interpretation of Statutes (12th Edn.) at p. 33: Omissions not to be inferred.--It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequa....
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....legislation and produce a wholly unreasonable result' we must 'do some violence to the words' and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. IRC[1963 AC 557: (1963) 2 WLR 559: (1963) 1 All ER 655 (HL)] where at AC p. 577 (All ER p. 664I) he also observed: 'This is not a new problem, though our standard of drafting is such that it rarely emerges'.] In the light of these principles we will have to construe sub-section (2)(b) with reference to the context and other clauses of Section 33-B." 22. Arijit Pasayat, J. has verbatim relied upon the above in Padma Sundara Raov. State of T.N. [(2002) 3 SCC 533], Union of India v. Dharamendra Textile Processors [(2008) 13 SCC 369], Nagar Palika Nigam v. Krishi Upaj Mandi Samiti[(2008) 12 SCC 364], Sangeeta Singh v. Union of India [(2005) 7 SCC 484], State of Kerala v. P.V. Neelakandan Nair [(2005) 5 SCC 561 : 2005 SCC (L&S) 698], Union of India v. Priyankan Sharan [(2008) 9 SCC 15], Maulavi Hussein Haji Abraham Umarji v. State of Gujarat [(2004) 6 SCC 672: 2004 SCC (Cri.) 1815: 2004 Cri. LJ 3860], Unique Butyle Tube Industries (P) Ltd. v. U.P. Financial Corpn.[(2....
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....stent enactment of the whole statute. The reasons for the same are required to be found in the four corners of the statue itself and it can be done only in the case of clear necessity. It could thus be seen that it is more than well settled that the first principle of interpretation is that of plain and literal interpretation. Only when the provision is found to be ambiguous, it will be permissible for the Court to take recourse to the other principles of interpretation. 18. As discussed hereinabove, perusal of Section 301 would reveal that the said provision cannot be said to be ambiguous or one, leading to anomalies, injustices and absurdities. It will be relevant to note that Section 301 falls in Part IX of the Succession Act, which deals with Probate, Letters of Administration and Administration of Assets of Deceased. Perusal of Section 234 of the Succession Act shows that it deals with grant of administration where no executor, nor residuary legatee nor representative of the said legatee is available. It provides that in such cases, Letters of Administration could be granted to various persons including creditor. Section 301 also comes under the same part. Neither the learn....
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.... "When a new cause of action is created by statute and a special jurisdiction outside the course of the general law is prescribed, there is no ouster of the jurisdiction of the ordinary Courts, for they never had any (see Maxwell on the Interpretation of Statutes, 7th Edition, p. 115). On the other hand, the proposition is well established that where an Act creates a special jurisdiction and provides a special remedy such jurisdiction is exclusively conferred upon the Court expressly empowered to deal with the matter. My conclusion is that the power to remove an executor and to provide for a successor to his office is one conferred upon the High Court alone by S. 301, Succession Act, and that such relief cannot be sought by regular suit." (Emphasis supplied) No doubt that, the learned Single Judge has referred to the judgment in the case of Karam Devi (cited supra) but has held that observations in the case of Karam Devi, leads directly to the proposition that the application under Section 301 for removal of the executor can only be maintained by one who accepts the Will. With great respect, we are unable to find any observations in the judgment of Division Bench of ....
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....here is no beneficiary can seek removal of the executor, plays ducks and drakes with the estate; deals with it contrary to the terms of the Will that appointed him in the first place; and is generally unaccountable for his actions? Where there is such a Will, one that gives to public causes, I do not believe that this Court's jurisdiction can ever be said to end at being a silent spectator. Whenever a Court in the performance of its duties sees wrong being done, it will step in. For, the primary task of a Court is to prevent a wrong from being done, and, if already done, to correct it. Not to allow unlawfulness, illegality and injustice to run their polluted course. To allow that is unthinkable. It is a betrayal and abdication of any judge's oath of office and judicial duty. I do not think there is anything in the ISA that says that a Court is to be sidelined and become hapless, mute witness and nothing more. After all when a Will is sought to be probated the result is an order in rem. It is global in reach. This makes it all the more incumbent on a Court to intervene and not sit idly by when there is demonstrated illegality or unlawfulness writ on the face of record. There....